|
The Real Debate Over American Citizenship |
 |
|
Wednesday, 06 February 2013 14:27 |
|
Reich writes: "On one side are those who think of citizenship as a matter of exclusion and privilege - of protecting the nation by keeping out those who are undesirable, and putting strict limits on who is allowed to exercise the full rights of citizenship."
Portrait, Robert Reich, 08/16/09. (photo: Perian Flaherty)
The Real Debate Over American Citizenship
By Robert Reich, Robert Reich's Blog
06 February 13
 ometimes we have a national conversation without realizing it. We talk about different aspects of the same larger issue without connecting the dots.
That's what's happening now with regard to the meaning of American citizenship and the basic rights that come with it.
On one side are those who think of citizenship as a matter of exclusion and privilege - of protecting the nation by keeping out those who are undesirable, and putting strict limits on who is allowed to exercise the full rights of citizenship.
On the other are those who think of citizenship inclusively - as an ongoing process of helping people become full participants in America.
One part of this conversation involves immigration. I'm not just referring the question of whether or how people living in the United States illegally can become citizens. (Courtesy of our fast-growing Latino population, 70 percent of whom voted for President Obama last November, we're far closer to resolving that one than we were a year ago.)
It's also a question of who we want to join us. Engraved on a bronze plaque mounted inside the lower level of the pedestal of the Statue of Liberty are Emma Lazarus' immortal words, written in 1883: "Give me your tired, your poor/ Your huddled masses yearning to breathe free/ The wretched refuse of your teeming shore./ Send these, the homeless, tempest-tost, to me."
By contrast, a bipartisan group of lawmakers last week introduced a bill giving priority to the highly skilled. "Our immigration system needs to be … more welcoming of highly skilled immigrants and the enormous contributions they can make to our economy," said one of its sponsors, Florida Senator Marco Rubio.
So is the priority to be those who need us, or those whom we need?
Another part of the same larger conversation concerns voting rights - the means by which citizens participate in our democracy.
Long waiting lines depressed voter turnout last November, especially in cities where Democrats outnumber Republicans. One study showed blacks and Hispanics on average had to wait nearly twice as long to vote as whites. Some gave up trying.
Voter registration is part of that issue, along with what sorts of proof of citizenship states may require. Dozens of legal challenges and lower-court decisions were made in the months leading up to the November election. Some are heading to appellate courts.
Congressional Democrats are pushing legislation to require states to ease voting requirements - allowing more early voting, online voting, and quicker means of registering. Meanwhile, the Supreme Court is preparing to hear a major challenge to the Voting Rights Act of 1965 potentially giving states more leeway to tighten voting standards.
A different aspect of the citizenship conversation concerns the rights of corporations to influence elections. The Court's bizarre 2010 decision in "Citizens United versus Federal Election Commission" - deeming corporations people under the First Amendment, with unlimited rights to spend money on elections - didn't consider the question of corporate citizenship as such.
But it's likely to become a big issue in the future as large American companies that pour lots of money into our elections morph into global corporations without any particular national identity.
Most of Chrysler is owned by Fiat, and most of Fiat is owned by non-Americans. Both IBM and GE have more non-American employees and customers than American, and foreign ownership of both continues to increase. At what point do these global entities forfeit their right to influence U.S. elections?
And then there's the growing debate about whether American citizens have the right to a trial by an impartial judge and jury before the government executes them.
You might think so. The Constitution guarantees American citizens "due process" of law. But a "white paper" from the Justice Department, recently obtained by NBC News, argues that an "informed, high-level" government official can unilaterally decide to put an American citizen to death without any judicial oversight if that official decides the citizen in question is an operational leader of Al Qaeda or one of its allies.
Even if you trust high-level officials in the current administration, their argument should give you pause. The relative ease by which targeted drones can now kill particular individuals far from recognized battlefields (as did the drone attack on American-born Anwar al-Awlaki in Yemen in September, 2011) raises uncomfortable questions about the protections accorded American citizens, as well as the potential for arbitrary decision making about who lives or dies.
They may seem unrelated, but all these issues - who gets to be an American citizen, how easily American citizens can vote, whether global corporations are American citizens entitled to influence our elections, and whether American citizens are entitled to a judge and jury before being executed - are pieces of the same larger debate: Are we more fearful of "them" out there, or more confident about "us"? Is our goal to constrain and limit citizenship, or to enlarge and fulfill its promise?
It's an old debate in America. The greatness of our nation lies in our overriding tendency to choose the latter.
Robert Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He has written thirteen books, including "The Work of Nations," "Locked in the Cabinet," "Supercapitalism" and his latest book, "AFTERSHOCK: The Next Economy and America's Future." His 'Marketplace' commentaries can be found on publicradio.com and iTunes.
 |
|
How Obama Redefined 'Imminence' to Drone Americans |
|
|
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=5767"><span class="small">Spencer Ackerman, WIRED</span></a>
|
|
Wednesday, 06 February 2013 14:23 |
|
Ackerman writes: "'Imminence' used to mean something in military terms...In order to justify his drone strikes on American citizens, President Obama redefined that concept to exclude any actual adversary attack."
President Barack Obama in Tucson, Arizona, 01/12/11. (photo: Jewel Samad/Getty Images)
How Obama Redefined 'Imminence' to Drone Americans
By Spencer Ackerman, Wired Magazine
06 February 13
  mminence" used to mean something in military terms: namely, that an adversary had begun preparations for an assault. In order to justify his drone strikes on American citizens, President Obama redefined that concept to exclude any actual adversary attack.
That's the heart of the Justice Department's newly leaked white paper, first reported by NBC News, explaining why a "broader concept of imminence" (.pdf) trumps traditional Constitutional protections American citizens enjoy from being killed by their government without due process. It's an especially striking claim when considering that the actual number of American citizens who are "senior operational leader[s] of al-Qaida or its associated forces" is vanishingly small. As much as Obama talks about rejecting the concept of "perpetual war" he's providing, and institutionalizing, a blueprint for it.
Imminence has always been a tricky concept. It used to depend on observable battlefield preparations, like tanks amassing near a front line, missile assemblage, or the fueling of fighter jet squadrons. Even under those circumstances, there has been little international consensus about when a nation under threat can take action. A classic example is Israel's June 1967 bombing of the Egyptian Air Force on its tarmac, which followed months of signals that Egypt was about to launch a massive assault. Whether you view Israel or Egypt as the aggressor tends to depend on your sympathy to either party in the conflict.
President George W. Bush contended that the U.S. had to invade Iraq not because the government knew Saddam Hussein was about to launch an attack on America, but because it didn't. Bush contended that uncertainty about Saddam's weapons of mass destruction, augmented by 9/11's warnings of shadowy terrorist groups plotting undetectable attacks, redefined "imminence" to mean the absence of dispositive proof refuting the existence of an unconventional weapons program that could be used in an attack. But when U.S. troops invaded, they learned that Saddam did not possess what Bush aide Condoleezza Rice famously termed a smoking gun that could come in the form of a mushroom cloud.
The undated Justice Department white paper, a summary of a number of still-classified legal analyses, redefines imminence once again. Al-Qaida leaders are "continually planning attacks," the undated white paper says, and so a preemptive attack "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests in the immediate future." Referencing the intelligence failures preceding 9/11, the paper concedes the U.S. "is likely to have only a limited window of opportunity within which to defend Americans." For an adversary attack to be "imminent," and a preemptive U.S. response justified, U.S. officials need only "incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks to America."
There's a subtlety at work in the Justice Department framework. It takes imminence out of the context of something an enemy does, and places it into the context of a policymaker's epistemic limitations. "The U.S. government may not be aware of all al-Qaida plots as they are developing and thus cannot be confident that none is about to occur," the white paper warns.
If there is a reasonable debate over what imminence means in an era of terrorism, and what standards ought to be accepted for defining it as an international norm, that framework preempts it. All that matters to justify a drone strike attack is for the U.S. to recognize it can't be all-knowing. It's the logical equivalent of the CIA's signature strike, which target anonymous military-age males in areas where terrorists operate based on a presumption that their pattern of observed behavior is consistent with those of terrorists.
It would be one thing if Obama was talking about foreigners who enlist in al-Qaida. But he's actually talking specifically about American citizens overseas who are "senior operational leader[s] of al-Qaida or its affiliated forces" - people whom the Constitution protects against the loss of life without due process of law. (The Justice Department stops short of claiming the government can take such lethal actions at home.) U.S. citizenship "does not immunize" such a person from reprisal. Here the white paper does not define what it means to be a "senior operational leader" of al-Qaida, let alone its "affiliated forces," and instead asserts the applicability of Supreme Court precedent from World War II holding that U.S. citizens who joined the Axis can be treated as enemy belligerents. (My Wired colleague David Kravets has more on the specific legal claims Obama makes.)
To read this, you might think the U.S. faced an onslaught of treason. The data show otherwise. For the third straight year, U.S. Muslim involvement in terrorism declined, according to the Triangle Center on Terrorism and Homeland Security, to the point where it's assessed to be fewer than 10 cases in a million - none of which resulted in anyone's death. The few such cases that do exist do not in any rigorous way describe "senior operational leaders" of al-Qaida. The only American in al-Qaida's senior cadre is a Californian metalhead turned propagandist named Adam Gadahn. The administration has asserted that Anwar al-Awlaki, the American citizen who incited terrorism in YouTube clips, was a senior operational leader of al-Qaida's Yemen branch, but refuses to provide evidence for the claim. Not only did the U.S. kill Awlaki in a drone strike, it later killed his 16-year old son Abdulrahman, whom it has never publicly claimed was a senior operational leader of al-Qaida.
Under the Obama administration, the decision to target members of al-Qaida abroad, both foreign citizens and Americans, is made under a regularized institutional process known by the shorthand of the "disposition matrix." One of its architects, White House counterterrorism chief, John Brennan, will testify on Thursday ahead of a Senate vote to confirm him as CIA director. Eleven senators, Democrat and Republican, wrote to the White House on Monday requesting the full secret memos - plural - explaining the administration's arguments for targeting Americans in drone strikes and commando raids.
Whether or not they receive the memos, the white paper asserts an understanding of battlefield imminence that means little more than the mere existence of al-Qaida, and unconstrained by protections for U.S. citizens that the Constitution traditionally grants. Once the U.S. makes that claim, so can others, creating pretext for further acts of war.
"The Justice Department's legal arguments purportedly defending targeted killing fundamentally misconceive the nature of self-defense," University of Notre Dame professor Mary Ellen O'Connell said in a prepared statement. "It is a right to use military force against a state that has or is about to launched a major military attack on the United States. The 9/11 attacks led to a war of self-defense in Afghanistan. That had all the hallmarks of legality. Contrast that use of force with the CIA firing of missiles from drones at a single individual and innocent bystanders in Yemen. You do not need to be an expert in international law to understand the enormous violation of law involved and the egregious conduct involved in attempting to exploit lack of knowledge of the law to achieve political cover for targeted killing."
|
|
|
FOCUS | To Kill an American |
|
|
Wednesday, 06 February 2013 13:27 |
|
Excerpt: "It was disturbing to see the twisted logic of the administration's lawyers laid out in black and white."
NYT: 'The white paper was sent to Capitol Hill seven months after the military carried out President Obama's orders to kill Anwar al-Awlaki.' (photo: Chip Somodevilla/Getty Images)
To Kill an American
The New York Times | Editorial
06 February 13
 n one level, there were not too many surprises in the newly disclosed "white paper" offering a legal reasoning behind the claim that President Obama has the power to order the killing of American citizens who are believed to be part of Al Qaeda. We knew Mr. Obama and his lawyers believed he has that power under the Constitution and federal law. We also knew that he utterly rejects the idea that Congress or the courts have any right to review such a decision in advance, or even after the fact.
Still, it was disturbing to see the twisted logic of the administration’s lawyers laid out in black and white. It had the air of a legal justification written after the fact for a policy decision that had already been made, and it brought back unwelcome memories of memos written for President George W. Bush to justify illegal wiretapping, indefinite detention, kidnapping, abuse and torture.
The document, obtained and made public by NBC News, was written by the Justice Department and coyly describes another, classified document (which has been described in The Times) that actually provided the legal justification for ordering the killing of American citizens.
That document still has not been provided to Congress, despite repeated demands from lawmakers. The white paper was sent to Capitol Hill seven months after the military carried out President Obama’s orders to kill Anwar al-Awlaki, an American who moved to Yemen and became an advocate of jihad against the United States.
In private, administration officials say Mr. Awlaki was a commander of an Al Qaeda affiliate and actively involved in planning attacks on the United States. Publicly, it has refused even to acknowledge that Mr. Obama ordered Mr. Awlaki killed or back up its claim that he was an active terrorist. The White House has vigorously fought holding any court hearing over the killing of Mr. Awlaki or his 16-year-old son, who was killed in a subsequent attack.
The American Civil Liberties Union is suing to have the operational memo on those killings released, arguing that an American citizen has constitutional rights that a judge must make sure are being respected. We agree.
According to the white paper, the Constitution and the Congressional authorization for the use of force after the attacks of Sept. 11, 2001, gave Mr. Obama the right to kill any American citizen that an "informed, high-level official" decides is a "senior operational leader of Al Qaeda or an associated force" and presents an "imminent threat of violent attack."
It never tries to define what an "informed, high-level official" might be, and the authors of the memo seem to have redefined the word "imminent" in a way that diverges sharply from its customary meaning. It talks about "due process" and the need to balance a person’s life "against the United States’ interest in forestalling the threat of violence and death to other Americans."
But it takes the position that the only "oversight" needed for such a decision resides within the executive branch, and there is no need to explain the judgment to Congress, the courts or the public - or, indeed, to even acknowledge that the killing took place.
The paper argues that judges and Congress don’t have the right to rule on or interfere with decisions made in the heat of combat. Some officials also draw a parallel to police officers who use violence to protect the innocent. Even in wartime, there are many ways to review commanders’ and soldiers’ decisions, and while courts-martial are internal to the military, their verdicts are subject to appeal to a civilian judge. When a police officer so much as discharges his weapon, it triggers a great deal of review, based on rules that are known to everyone.
The white paper "is a confusing blend of self-defense and law of war concepts and doesn’t clearly explain whether there is a different standard for killing a senior Al Qaeda leader depending on whether he is a citizen," said Kate Martin, director of the Center for National Security Studies. "Its due process analysis is especially weak."
The memo could and should have been released months ago. The administration could and should have provided a select number of lawmakers with the specifics on the killing of Mr. Awlaki and his son. The president could and should have acknowledged that decision and explained it.
Going forward, he should submit decisions like this one to review by Congress and the courts. If necessary, Congress could create a special court to handle this sort of sensitive discussion, like the one it created to review wiretapping. This dispute goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.
|
|
FOCUS | Top Five Objections to the White House's Drone Killing Memo |
|
|
Wednesday, 06 February 2013 11:22 |
|
Cole writes: "Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation."
Juan Cole; public intellectual, prominent blogger, essayist and professor of history. (photo: Informed Comment)
Top Five Objections to the White House's Drone Killing Memo
By Juan Cole, Informed Comment
06 February 13
 BC's Michael Isikoff has revealed the text of a white paper composed for Congress by the Department of Justice that sheds light on the legal arguments made by Eric Holder in justifying the killing by drone strike of Americans abroad, who are suspected of belonging to al-Qaeda. That the memo did not even require that the US know of a specific and imminent plot against the US, of which the al-Qaeda member was guilty, for it to kill him from the skies, alarmed all the country's civil libertarians.
Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation.
1. In the Western tradition of law, there can be no punishment without the commission of a specific crime defined by statute. The memo does not require that a specific crime have been committed, or that a planned criminal act be a clear and present danger, for an American citizen to be targeted for execution by drone.
2. To any extent that the president's powers under the memo are alleged to derive from the 2001 Congressional Authorization for the Use of Military Force, i.e. from the legislature, they are a form of bill of attainder (the History Learning Site explains what that is here):
"A bill, act or writ of attainder was a piece of legislation that declared a person or persons guilty of a crime. A bill of attainder allowed for the guilty party to be punished without a trial. A bill of attainder was part of English common law. Whereas Habeus Corpus guaranteed a fair trial by jury, a bill of attainder bypassed this. The word 'attainder' meant tainted. A bill of attainder was mostly used for treason . . . and such a move suspended a person's civil rights and guaranteed that the person would be found guilty of the crimes stated in the bill as long as the Royal Assent was gained. For serious crimes such as treason, the result was invariably execution."
What, you might ask, is wrong with that? Only that it is unconstitutional. Tech Law Journal explains:
"The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed." . . .
"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.
The form of the AUMF, in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force, is that of a bill of attainder. Congress cannot declare war on small organizations - war is declared on states. Such a bill of attainder is inherently unconstitutional.
3. The memo's vision violates the principle of the separation of powers. It makes the president judge, jury and executioner. Everything is done within the executive branch, with no judicial oversight whatsoever. The powers the memo grants the president are the same enjoyed by the absolute monarchs of the early modern period, against whom Montesquieu penned his Spirit of the Laws, which inspired most subsequent democracies, including the American. Montesquieu said:
"Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the most dreadful oppression.
Ironically, given contemporary American Islamophobia, the Obama administration has made itself resemble not the Sun-King, Louis XIV, who at least did have a court system not completely under his thumb, but rather, as Montesquieu saw it, the Ottoman sultans, who he claimed combined in themselves executive, legislative and judicial power. (Actually the Muslim qadis or court judges who ruled according to Islamic law or sharia were also not completely subjugated to the monarch, so even the Ottomans were better than the drone memo).
3. The memo resurrects the medieval notion of "outlawry" - that an individual can be put outside the protection of the law by the sovereign for vague crimes such as "rebellion," and merely by royal decree. A person declared an outlaw by the king was deprived of all rights and legal protections, and anyone could do anything to him that they wished, with no repercussions. (The slang use of "outlaw" to mean simply "habitual criminal" is an echo of this ancient practice, which was abolished in the UK and the US).
I wrote on another occasion that the problem with branding someone an "outlaw" by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution. Its framers insisted that you couldn't just hang someone out to dry by decree. Rather, a person who was alleged to have committed a crime such as treason or terrorism had to be captured, brought to court, tried, and sentenced in accordance with a specific statute, and then punished by the state. If someone is arrested, they have the right to demand to be produced in court before a judge, a right known as habeas corpus ("bringing the body," i.e. bringing the physical person in front of a judge).
The relevant text is the Sixth Amendment in the Bill of Rights:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
4. The memo asks us to trust the executive to establish beyond the shadow of a doubt the guilt of an individual in a distant land, to whom access is so limited that the US cannot hope to capture him or have local authorities capture him. But Andy Worthington has established that very large numbers of the prisoners the US sent to Guantanamo were innocent of the charges against them. If the executive arm of the government can imprison people mistakenly, it can blow them away by drone mistakenly. A US government official once told me the story of an Iraqi Shiite who had fled persecution under Saddam through Iran all the way to Afghanistan. In 2001, locals eager to make a buck turned him in as "Taliban" to the US military, which apparently did not realize that Iraqi Shiites would never ever support a hyper-Sunni movement like that. So the Iraqi Shiite was sent to Guantanamo and it could even be that Taliban themselves were paid by the US for turning him in. The official may have been speaking of Jowad Jabar. These American officials are way too ignorant to be given the power to simply execute human beings from the sky on the basis of their so-called 'intelligence.'
5. The memo, as Glenn Greenwald points out, ratifies the Bush/Cheney theory that the whole world is a battlefield on which the US is continually at war. Treating the few hundred al-Qaeda, spread around the world in 60 small cells, as an enemy army, making them analogous to German troops in WW II, is insane on the face of it. Our current secretary of state, John Kerry, largely rejected the notion. Al-Qaeda consists of criminals, not soldiers, and they pose a police counter-terrorism problem, not a battlefield problem. The notion that the whole world is a battlefield violates basic legal conceptions of international law such as national sovereignty.
|
|
